By Kate Davey (Senior Associate) and Paul Welling (Principal Solicitor)
The first hearing of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry will take place today in Melbourne.
Although no witnesses will be called at this initial public hearing, we thought that it would be timely to briefly summarise the rights and obligations of those summonsed to appear as a witness (or produce documents) to a Royal Commission.
What powers does the Royal Commission have?
The Royal Commissions Act 1902 (Cth) (the Act) gives the Commission power to summons a person to appear at a hearing to give evidence or to produce documents (or both).
This power includes the power to require or summons a person to produce a document that is subject to legal professional privilege (LPP).
Failure to comply
If a person served with a summons fails to attend to answer the summons (or to produce the documents required) at the Royal Commission, a warrant may be issued for that person’s arrest.
A failure to attend or to produce documents at a Royal Commission is a strict liability offence with a penalty of $1000 or 6 months’ imprisonment.
Documents which are subject to Legal Professional Privilege
It is not a reasonable excuse to refuse or fail to produce a document at a Royal Commission on the grounds that the document (or part of the document) is subject to LPP, unless:
- a court has found the document to be subject to LPP; or
- a claim that the document is subject to LPP has been made, to the member of the Commission who required production of the document, within the time that the member allowed for its production.
If a claim for LPP is made, the relevant member of the Commission may decide whether to reject or accept the claim. The member can inspect the document for the purpose of making his or her decision. If a document is produced for inspection and the member decides to reject the claim, the Commission may then use the document for the purpose of the Commission’s inquiry. The Federal Court has the power to review decisions.
The Courts have determined that the “litigation limb” of LPP does not apply to documents brought into existence in relation to a commission or inquiry established pursuant to the Act, on the basis that a Royal Commission carries out investigations, determines facts and prepares a report or recommendations – it does not finally determine any rights or obligations. The “advice limb” of LPP, however, may still apply.
It is not a reasonable excuse to refuse or fail to produce a document or to answer a question on the ground that the document or answer might tend to incriminate the person or make them liable to a penalty.
However, the above does not apply if:
- the production or answer might tend to incriminate the person in relation to an offence or make the person liable to a penalty; and
- the person has been charged with that offence or proceedings in respect of the penalty have commenced; and
- the charge or proceedings have not been finally dealt with by a court or otherwise disposed of.
Statements made by witness not admissible in evidence against the witness
Any statements or disclosures made by a person while giving evidence before a Royal Commission, or documents produced pursuant to a summons from a Commission, are not admissible in evidence against the person in any civil or criminal proceedings in any court.
Take away points
The Royal Commission has extensive powers to gather evidence and non-compliance has serious consequences. If you have been summoned (or think that you might be summoned), you should seek legal advice as to your rights and obligations and preserve all potentially relevant documents.